BILL NUMBER: SB 1185	CHAPTERED  09/02/99

	CHAPTER   311
	FILED WITH SECRETARY OF STATE   SEPTEMBER 2, 1999
	APPROVED BY GOVERNOR   SEPTEMBER 1, 1999
	PASSED THE SENATE   AUGUST 19, 1999
	PASSED THE ASSEMBLY   JULY 15, 1999
	AMENDED IN ASSEMBLY   MAY 26, 1999
	AMENDED IN SENATE   APRIL 15, 1999

INTRODUCED BY   Senator Johnston

                        FEBRUARY 26, 1999

   An act to amend Section 56.17 of the Civil Code, to amend Section
12926 of the Government Code, to amend Section 1374.7 of the Health
and Safety Code, and to amend Sections 10123.3 and 10147 of the
Insurance Code, relating to genetic characteristics.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 1185, Johnston.  Genetic characteristics:  definition.
   (1) Existing law prohibits discrimination in employment based on
an individual's medical condition, which is defined to include
genetic characteristics.  Existing law also prohibits discrimination
in the enrollment of health care service plans, self-insured employee
welfare benefit plans, and life and disability income insurance
plans on the basis of an individual's genetic characteristics, and
defines "genetic characteristics" for these purposes.
   This bill would recast and rephrase the definition of "genetic
characteristics" for these purposes.
   (2) Existing law imposes prohibitions on the disclosure of the
results of a test for a genetic characteristic contained in an
applicant or enrollee's medical records by a health care service
plan.
   This bill would specify that "genetic characteristic," as used in
these prohibitions, has the same meaning as that set forth in the
provisions governing discrimination in the enrollment of health care
service plans.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 56.17 of the Civil Code is amended to read:
   56.17.  (a) This section shall apply to the disclosure of genetic
test results contained in an applicant or enrollee's medical records
by a health care service plan.
   (b) Any person who negligently discloses results of a test for a
genetic characteristic to any third party in a manner that identifies
or provides identifying characteristics of the person to whom the
test results apply, except pursuant to a written authorization as
described in subdivision (g), shall be assessed a civil penalty in an
amount not to exceed one thousand dollars ($1,000) plus court costs,
as determined by the court, which penalty and costs shall be paid to
the subject of the test.
   (c) Any person who willfully discloses the results of a test for a
genetic characteristic to any third party in a manner that
identifies or provides identifying characteristics of the person to
whom the test results apply, except pursuant to a written
authorization as described in subdivision (g), shall be assessed a
civil penalty in an amount not less than one thousand dollars
($1,000) and no more than five thousand dollars ($5,000) plus court
costs, as determined by the court, which penalty and costs shall be
paid to the subject of the test.
   (d) Any person who willfully or negligently discloses the results
of a test for a genetic characteristic to a third party in a manner
that identifies or provides identifying characteristics of the person
to whom the test results apply, except pursuant to a written
authorization as described in subdivision (g), that results in
economic, bodily, or emotional harm to the subject of the test, is
guilty of a misdemeanor punishable by a fine not to exceed ten
thousand dollars ($10,000).
   (e) In addition to the penalties listed in subdivisions (b) and
(c), any person who commits any act described in subdivision (b) or
(c) shall be liable to the subject for all actual damages, including
damages for economic, bodily, or emotional harm which is proximately
caused by the act.
   (f) Each disclosure made in violation of this section is a
separate and actionable offense.
   (g) The applicant's "written authorization," as used in this
section, shall satisfy the following requirements:
   (1) Is written in plain language.
   (2) Is dated and signed by the individual or a person authorized
to act on behalf of the individual.
   (3) Specifies the types of persons authorized to disclose
information about the individual.
   (4) Specifies the nature of the information authorized to be
disclosed.
   (5) States the name or functions of the persons or entities
authorized to receive the information.
   (6) Specifies the purposes for which the information is collected.

   (7) Specifies the length of time the authorization shall remain
valid.
   (8) Advises the person signing the authorization of the right to
receive a copy of the authorization.  Written authorization is
required for each separate disclosure of the test results.
   (h) This section shall not apply to disclosures required by the
Department of Health Services necessary to monitor compliance with
Chapter 1 (commencing with Section 124975) of Part 5 of Division 106
of the Health and Safety Code, nor to disclosures required by the
Department of Corporations necessary to administer and enforce
compliance with Section 1374.7 of the Health and Safety Code.
   (i) For purposes of this section, "genetic characteristic" has the
same meaning as that set forth in subdivision (d) of Section 1374.7
of the Health and Safety Code.
  SEC. 2.  Section 12926 of the Government Code is amended to read:
   12926.  As used in this part in connection with unlawful
practices, unless a different meaning clearly appears from the
context:
   (a) "Affirmative relief" or "prospective relief" includes the
authority to order reinstatement of an employee, awards of backpay,
reimbursement of out-of-pocket expenses, hiring, transfers,
reassignments, grants of tenure, promotions, cease and desist orders,
posting of notices, training of personnel, testing, expunging of
records, reporting of records, and any other similar relief that is
intended to correct unlawful practices under this part.
   (b) "Age" refers to the chronological age of any individual who
has reached his or her 40th birthday.
   (c) "Employee" does not include any individual employed by his or
her parents, spouse, or child, or any individual employed under a
special license in a nonprofit sheltered workshop or rehabilitation
facility.
   (d) "Employer" includes any person regularly employing five or
more persons, or any person acting as an agent of an employer,
directly or indirectly, the state or any political or civil
subdivision thereof, and cities, except as follows:
   (1) "Employer" does not include a religious association or
corporation not organized for private profit.
   (2) "Employer," for purposes of provisions defining unlawful
employment practices related to mental disability, means any person
regularly employing 15 or more persons, or any person directly or
indirectly acting as an agent of such an employer, and also includes
the state and municipalities and political subdivisions of the state.

   (e) "Employment agency" includes any person undertaking for
compensation to procure employees or opportunities to work.
   (f) "Essential functions" means the fundamental job duties of the
employment position the individual with a disability holds or
desires.  "Essential functions" does not include the marginal
functions of the position.
   (1) A job function may be considered essential for any of several
reasons, including, but not limited to, any one or more of the
following:
   (A) The function may be essential because the reason the position
exists is to perform that function.
   (B) The function may be essential because of the limited number of
employees available among whom the performance of that job function
can be distributed.
   (C) The function may be highly specialized, so that the incumbent
in the position is hired for his or her expertise or ability to
perform the particular function.
   (2) Evidence of whether a particular function is essential
includes, but is not limited to, the following:
   (A) The employer's judgment as to which functions are essential.
   (B) Written job descriptions prepared before advertising or
interviewing applicants for the job.
   (C) The amount of time spent on the job performing the function.
   (D) The consequences of not requiring the incumbent to perform the
function.
   (E) The terms of a collective bargaining agreement.
   (F) The work experiences of past incumbents in the job.
   (G) The current work experience of incumbents in similar jobs.
   (g) "Labor organization" includes any organization that exists and
is constituted for the purpose, in whole or in part, of collective
bargaining or of dealing with employers concerning grievances, terms
or conditions of employment, or of other mutual aid or protection.
   (h) "Medical condition" includes either of the following:
   (1) Any health impairment related to or associated with a
diagnosis of cancer, for which a person has been rehabilitated or
cured, based on competent medical evidence.
   (2) Genetic characteristics.  For purposes of this section,
"genetic characteristics" means either of the following:
   (A) Any scientifically or medically identifiable gene or
chromosome, or combination or alteration thereof, that is known to be
a cause of a disease or disorder in a person or his or her
offspring, or that is determined to be associated with a
statistically increased risk of development of a disease or disorder,
and that is presently not associated with any symptoms of any
disease or disorder.
   (B) Inherited characteristics that may derive from the individual
or family member, that are known to be a cause of a disease or
disorder in a person or his or her offspring, or that are determined
to be associated with a statistically increased risk of development
of a disease or disorder, and that are presently not associated with
any symptoms of any disease or disorder.
   (i) "Mental disability" includes any mental or psychological
disorder, such as mental retardation, organic brain syndrome,
emotional or mental illness, and specific learning disabilities.
However, "mental disability" does not include conditions excluded
from the federal definition of "disability" pursuant to Section 511
of the Americans with Disabilities Act of 1990 (42 U.S.C., Sec.
12211).  Additionally, for purposes of this part, the unlawful use of
controlled substances or other drugs shall not be deemed, in and of
itself, to constitute a mental disability.
   (j) "On the bases enumerated in this part" means or refers to
discrimination on the basis of one or more of the following:  race,
religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, marital status,
sex, or age.
   (k) "Physical disability" includes, but is not limited to, all of
the following:
   (1) Having any physiological disease, disorder, condition,
cosmetic disfigurement, or anatomical loss that does both of the
following:
   (A) Affects one or more of the following body systems:
neurological, immunological, musculoskeletal, special sense organs,
respiratory, including speech organs, cardiovascular, reproductive,
digestive, genitourinary, hemic and lymphatic, skin, and endocrine.
   (B) Limits an individual's ability to participate in major life
activities.
   (2) Any other health impairment not described in paragraph (1)
that requires special education or related services.
   (3) Being regarded as having or having had a disease, disorder,
condition, cosmetic disfigurement, anatomical loss, or health
impairment described in paragraph (1) or (2).
   (4) Being regarded as having, or having had, a disease, disorder,
condition, cosmetic disfigurement, anatomical loss, or health
impairment that has no present disabling effect but may become a
physical disability as described in paragraph (1) or (2).
   It is the intent of the Legislature that the definition of
"physical disability" in this subdivision shall have the same meaning
as the term "physical handicap" formerly defined by this subdivision
and construed in American National Ins. Co. v. Fair Employment &
Housing Com., 32 Cal.3d 603.  However, "physical disability" does not
include conditions excluded from the federal definition of
"disability" pursuant to Section 511 of the Americans with
Disabilities Act of 1990 (42 U.S.C., Sec. 12211).  Additionally, for
purposes of this part, the unlawful use of controlled substances or
other drugs shall not be deemed, in and of itself, to constitute a
physical disability.
   (l) Notwithstanding subdivisions (i) and (k), if the definition of
"disability" used in the Americans with Disabilities Act of 1990
(Public Law 101-336) would result in broader protection of the civil
rights of individuals with a mental disability or physical
disability, as defined in subdivision (i) or (k), or would include
any medical condition not included within those definitions, then
that broader protection or coverage shall be deemed incorporated by
reference into, and shall prevail over conflicting provisions of, the
definitions in subdivisions (i) and (k).
   (m) "Reasonable accommodation" may include either of the
following:
   (1) Making existing facilities used by employees readily
accessible to, and usable by, individuals with disabilities.
   (2) Job restructuring, part-time or modified work schedules,
reassignment to a vacant position, acquisition or modification of
equipment or devices, adjustment or modifications of examinations,
training materials or policies, the provision of qualified readers or
interpreters, and other similar accommodations for individuals with
disabilities.
   (n) "Religious creed," "religion," "religious observance,"
"religious belief," and "creed" include all aspects of religious
belief, observance, and practice.
   (o) "Sex" includes, but is not limited to, pregnancy, childbirth,
or medical conditions related to pregnancy or childbirth.
   (p) "Undue hardship" means an action requiring significant
difficulty or expense, when considered in light of the following
factors:  (1) the nature and cost of the accommodation needed, (2)
the overall financial resources of the facilities involved in the
provision of the reasonable accommodations, the number of persons
employed at the facility, and the effect on expenses and resources or
the impact otherwise of these accommodations upon the operation of
the facility, (3) the overall financial resources of the covered
entity, the overall size of the business of a covered entity with
respect to the number of employees, and the number, type, and
location of its facilities, (4) the type of operations, including the
composition, structure, and functions of the work force of the
entity, and (5) the geographic separateness, administrative, or
fiscal relationship of the facility or facilities.
  SEC. 3.  Section 1374.7 of the Health and Safety Code is amended to
read:
   1374.7.  (a) No plan shall refuse to enroll any person or accept
any person as a subscriber or renew any person as a subscriber after
appropriate application on the basis of a person's genetic
characteristics that may, under some circumstances, be associated
with disability in that person or that person's offspring.  No plan
shall require a higher rate or charge, or offer or provide different
terms, conditions, or benefits, on the basis of a person's genetic
characteristics that may, under some circumstances, be associated
with disability in that person or that person's offspring.
   (b) No plan shall seek information about a person's genetic
characteristics for any nontherapeutic purpose.
   (c) No discrimination shall be made in the fees or commissions of
a solicitor or solicitor firm for an enrollment or a subscription or
the renewal of an enrollment or subscription of any person on the
basis of a person's genetic characteristics that may, under some
circumstances, be associated with disability in that person or that
person's offspring.
   (d) "Genetic characteristics" as used in this section means either
of the following:
   (1) Any scientifically or medically identifiable gene or
chromosome, or combination or alteration thereof, that is known to be
a cause of a disease or disorder in a person or his or her
offspring, or that is determined to be associated with a
statistically increased risk of development of a disease or disorder,
and that is presently not associated with any symptoms of any
disease or disorder.
   (2) Inherited characteristics that may derive from the individual
or family member, that are known to be a cause of a disease or
disorder in a person or his or her offspring, or that are determined
to be associated with a statistically increased risk of development
of a disease or disorder, and that are presently not associated with
any symptoms of any disease or disorder.
  SEC. 4.  Section 10123.3 of the Insurance Code is amended to read:

   10123.3.  (a) No self-insured employee welfare benefit plan shall
refuse to enroll any person or accept any person as a subscriber or
renew any person as a subscriber after appropriate application on the
basis of a person's genetic characteristics that may, under some
circumstances, be associated with disability in that person or that
person's offspring.  No plan shall require a higher rate or charge,
or offer or provide different terms, conditions, or benefits, on the
basis of a person's genetic characteristics that may, under some
circumstances, be associated with disability in that person or that
person's offspring than is at the time required of any other
individual in an otherwise identical classification, nor shall any
plan make or require any rebate, discrimination, or discount upon the
amount to be paid or the service to be rendered under the plan
because the person carries those traits.
   (b) No self-insured employee welfare benefit plan shall seek
information about a person's genetic characteristics for any
nontherapeutic purpose.
   (c) No discrimination shall be made in the fees or commissions of
a solicitor or solicitor firm for an enrollment or a subscription or
the renewal of an enrollment or subscription of any person on the
basis of a person's genetic characteristics that may, under some
circumstances, be associated with disability in that person or that
person's offspring.
   (d) "Genetic characteristics" as used in this section means either
of the following:
   (1) Any scientifically or medically identifiable gene or
chromosome, or combination or alteration thereof, that is known to be
a cause of a disease or disorder in a person or his or her
offspring, or that is determined to be associated with a
statistically increased risk of development of a disease or disorder,
and that is presently not associated with any symptoms of any
disease or disorder.
   (2) Inherited characteristics that may derive from the individual
or family member, that are known to be a cause of a disease or
disorder in a person or his or her offspring, or that are determined
to be associated with a statistically increased risk of development
of a disease or disorder, and that are presently not associated with
any symptoms of any disease or disorder.
  SEC. 5.  Section 10147 of the Insurance Code is amended to read:
   10147.  As used in this article:
   (a) "Disability income insurance" means insurance against loss of
occupational earning capacity arising from injury, sickness, or
disablement, and includes insurance which provides benefits for
overhead expenses of a business or profession when the insured
becomes disabled.
   (b) "Genetic characteristics" means any scientifically or
medically identifiable gene or chromosome, or alteration thereof,
that is known to be a cause of a disease or disorder, or that is
determined to be associated with a statistically increased risk of
development of a disease or disorder, and that is presently not
associated with any symptoms of any disease or disorder.
   (c) "Life or disability income insurer" means an insurer licensed
to transact life insurance or disability income insurance in this
state or a fraternal benefit society licensed in this state.
   (d) "Policy" means (1) a life insurance policy or a disability
income insurance policy delivered in this state, or (2) a certificate
of life insurance benefits or disability income insurance benefits,
issued under a group life or disability income insurance policy and
delivered in this state by a life or disability income insurer or a
fraternal benefits society, regardless of the location of the group
master policy.
   (e) "Test of a person's genetic characteristics" means a
laboratory test which is generally accepted in the scientific and
medical communities for the determination of the presence or absence
of genetic characteristics.
